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EXEMPTIONS FROM DISCLOSURE OF INFORMATION UNDER
RIGHT TO INFORMATION ACT, 2005: A METHODICAL REVIEW
Parveen Sayyed*
Introduction
The concept of legal right has been developed parallel to Natural
Law Theory. Modern written Constitution has evolved from the
concept of Natural Law as a higher law1. Fundamental rights are
the modern name for what have been traditionally know as
natural rights2 and it is in fact extension, combination or
permutations of the basic natural rights 3. The expression
“freedom of speech and expression” in Article 19 (1) (a) of the
Constitution has been held to include the right to acquire
information and disseminate the same 4. Though right to
information was uniformly recognized by the Court in catena of
cases as an aspect of freedom of speech and expression and even
it is extended to right to life 5, it was finally incorporated in the
Right to Information Act, 2005 and given full mechanism for its
realization.
It is pertinent to note that though citizens have a right to know
about the affairs of the Government, the said right is not absolute
and it can be legitimately restricted in exceptional circumstances6.
Besides constitutional command and legislative response in India,
judiciary is also adumbrating law relating to right to information
on case to case basis approach7. The present article deals with the
*
Ph.D. Scholar, Department of Law & Senior Law Officer, Savitribai Phule Pune
University,Pune.
1 Durga Das Basu, “Human Rights in constitutional law”, Third Edition 2008,
Page 54.
2 Golak Nath v. State of Punjab, AIR 1967 SC 1643.
3 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
4 PCUL v. Union of India, (2003) 4 SCC 399. Also see State of Uttar Pradesh v. Raj
Narayan, AIR 1975 SC 865 wherein it was laid down that, Article 19 (1) (a)
ensures and comprehends right of citizen to receive information regarding
matters of public concern.
5 In Essar Oil Ltd v. Halar Utkarsh Samiti, AIR 2004 SC 1834, the Court held that
there is strong link between Article 21and the right to know particularly when
secret Government decision may affect health, life and livelihood.
6 Dinesh Trivedi v. Union of India, (1997) 4 SCC 306. See also, S.P. Gupta v. Union
of India, (1981) Supp SCC 87 at pp. 284-286, wherein Court stated that
whenever disclosure of a document is clearly contrary to the public interest it is
immune from disclosure.
7 See, Association of Democratic Reform v. Union of India, AIR 2001 Delhi 126,
Essar Oil Ltd v. Halar Utkarsh Samiti, AIR 2004 SC 1834, State of U.P. v. Raj
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Bharati Law Review, Oct-Dec, 2016 231
issue of exemptions from disclosure of information under Right to
Information Act, 2005.
Democratic form of Government necessarily requires
accountability which is possible only when there is openness,
transparency and knowledge. Greater exposure about functioning
of the Government ensures better and more efficient
administration, promotes and encourages honesty and
discourages corruption, misuse or abuse of powers by an officer or
authority. Transparency is a powerful safeguard against political
and administrative aberrations and antithesis of inefficiency
resulting from a totalitarian government which maintains secrecy
and denies information. 8
Right to Information Act, 2005 (hereinafter referred to as ‘RTI Act’)
sets out the practical regime of right to information for citizens to
secure access to information from a public authority, which is
held by the public authority or which is held under its control, in
order to promote transparency and accountability in the working
of the Government, contain corruption, and make our democracy
work for the people in real sense. Thus, it is one of the most
empowering and most progressive legislations passed in the post-
independence era. However, it is equally true that revelation of
information in actual practice is likely to conflict with other public
interests including efficient operations of Governments, optimum
use of limited fiscal resources and the preservation of
confidentiality of sensitive information and therefore, it is
necessary to harmonize these conflicting interests while
preserving the supremacy of the democratic ideal. 9 It would be
necessary to examine the details of information that are sought
from the public authority. An omnibus disclosure of all records
sought for, cannot be allowed without examining the nature of
information contained therein. Right to information shall not be
denied on mere apprehension when such apprehension can be
cured out by other way. 10
The RTI Act mandates disclosure of information rather than
withholding the same, unless the information sought for falls
under any of the exempted categories of information enumerated
in Section 8(1) and Section 9 of the Act. Therefore, while enforcing
Narayan, AIR 1975 SC865, Secretary Ministry of Information and Broadcasting,
Government of India v. Cricket Association of Bengal, AIR 1995 Sc 1236, K.
ravikumar v. Bangalore University, AIR 2005 Karnataka 21, L.K. Collwall v. State
of Rajasthan, AIR 1988 Rajasthan 2.
8 S.P. Gupta and Ors. vs. President of India and Ors., AIR 1982 SC 149.
9 Right to Information Act, 2005- Bare Act.
10 Union Public Service Commission vs. G. S. Sandhu, 204 (2013) DLT 212.
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Bharati Law Review, Oct-Dec, 2016 232
provisions of the RTI Act, the public authority shall have to take
into consideration the sprit and tenor of the RTI Act.
I) Exemptions under Section 8(1) of the RTI Act- An Overview
Exemptions against furnishing information under the RTI Act
have been provided under Section 8(1) and Section 9 of the Act.
Unless the public authority is able to demonstrate that
information sought for falls under any of the exempted categories
of information, it would be bound to provide the information and
that reasons for rejection of requests for information must also be
clearly provided. Section 8 (1) of the RTI Act being a non-obstante
provision, over-rides other provisions of the RTI Act.
Under Section 8 (1) (a) of the RTI Act, a public authority is not
under obligation to furnish the information disclosure of which
would prejudicially affect the sovereignty and integrity of India,
the security, strategic, scientific or economic interests of the State,
relation with foreign State or lead to incitement of an offence. As
defined in Black’s law Dictionary, sovereignty means the supreme,
absolute and uncontrollable power by which an independent State
is governed. Thus, the concept of sovereignty involves freedom
from all foreign control or domination. For the purpose of Clause
(a) of Section 8 (1), the term integrity denotes the state of being
whole, entire or undiminished. The Public authority is not under
obligation to disclose the information that may prejudicially affect
sovereignty and integrity of India. The definition of security is
definitely broad and includes political, economic, environmental,
social and human among other strands that impact the concept of
security. The information which relates to national security of
India could genuinely cause harm if it is released to the public.
Disclosure of information that generates anxiety or threatens the
quality of life may prejudicially affect security of the State and
therefore, the same should not be disclosed.
Information of messages intercepted in the interests of the
sovereignty and integrity of India, may be exempted from
disclosure under Section 8(1) (a) of the RTI Act. Information
envisaged under Section 8 (1) (a) of the RTI Act also includes
information relating to military movements and operations,
information relating to ammunition issued to police officers during
a specific time period, strategic defence secrets plans, information
published during a conflict, etc. However, it would not be proper
to use this exemption to keep common commercial information
secret, simply because it relates to defence. Disclosure of
information about currency or exchange rates, interest rates,
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Bharati Law Review, Oct-Dec, 2016 233
taxes, the regulation or supervision of banking, insurance and
other financial institutions, proposals for expenditure or
borrowing and foreign investment could in some cases harm the
national economy, particularly if released prematurely. However,
lower level economic and financial information, like contracts and
departmental budgets should not be withheld under this
exemption.
The relationship between countries can often be sensitive, such
that candid assessments and analysis of behavior of other
countries and policies could easily offend and in so doing, damage
own international interests of India.11Therefore, information which
could be interpreted as offensive to friendly relations with foreign
States is exempted from disclosure. Information related to non-
performing assets of banks annual net investments made by each
foreign institutional investor in India may be exempted under
economic interests of the State, if public interest in disclosure of
such information outweighs the harm to the protected interests.
Any information disclosure of which is capable of exciting even a
modest person to commit an offence may be exempted. Therefore,
information of messages intercepted for preventing incitement to
the commission of an offence, may be exempted from disclosure
under Section 8(1) (a) of the RTI Act.
In Delhi Metro Rail Corporation Ltd. v. Sudhir Vohra,12the High
Court of Delhi has held that since the information on all
structural drawings of both the pile foundation and the
superstructure, including all steel reinforcement details,
foundation details, engineering calculations and soil tests
pertaining to the cantilevered bracket of Metro Pillar No. 67, was
given to engineers, contractors, sub-contractors and other people
working in field, there had been disclosure of such information
earlier and therefore, Section 8(1)(a) of Act was not attracted as
disclosure and furnishing of information could not prejudicially
affect scientific and economic interests of State.
In Ms. Suchitra J.Y., Bangalore v. Bharatiya Nabhikiya Vidyut
Nigam Ltd. (BHAVINI),13the Central Information Officer has denied
the economic information related to a prototype fast breeder
reactor under construction from the Bharatiya Nabhikiya Vidyut
Nigam Ltd., on the ground that specific cost regarding fuel and
11 www.humanrightsinitiative.org/programs/ai/rti/.../info_not_access.htm
12 AIR 2011 Delhi 167.
13 Appeal No. CIC/WB/A/2007/00760, Decision dated 11-5-2007.
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Bharati Law Review, Oct-Dec, 2016 234
core will indicate what is happening inside the reactor and what
its components are.
In Union of India v. Central Information Commission and
Anr.,14disclosure of all the letters sent by the former President of
India, Shri K.R. Narayanan, to the then Prime Minister, Shri A.B.
Vajpayee, between 28th February, 2002 to 15th March, 2002
relating to "Gujarat riots", was sought. In this matter, the High
Court of Delhi has held that production of all material on which
ministerial advice was based enjoys immunity from disclosure,
even in proceedings initiated under RTI Act on the ground that
RTI Act which was enacted by Legislature under powers given
under Constitution could not abrogate amend, modify or change
bar under Article 74(2) of Constitution. Therefore, the RTI Act
should be construed in the light of the provisions of the
Constitution of India.
Thus, certain class of documents is entitled for constitutional
protection from disclosure even under RTI Act, in view of its
inherent nature which squarely falls within the ambit of
“classified documents”.
Information that has been expressly forbidden to be published by
any Court of Law or Tribunal and the information, disclosure of
which may constitute contempt of Court, are exempted from
disclosure under Section 8(1)(b) of the RTI Act. Contempt of court
is dealt with under the Contempt of Courts Act, 1971. Contempt
of court includes civil contempt and criminal contempt. Civil
contempt means wilful disobedience to any judgement, decree,
direction, order, writ or other process of a court or wilful breach of
an undertaking given to a court. Criminal contempt means the
publication, whether by words, spoken or written, or by signs, or
by visible representation, or otherwise, of any matter or the doing
any act, whatsoever, which scandalizes or lowers or the authority
of any court, or prejudices or interferes with the due course of any
judicial proceeding or interferes with or obstructs the
administration of justice in any other manner. The public
authority is required to decide which information would cause
contempt of court before applying this provision of the RTI Act.
However, disclosing information on matters which are sub judice
does not constitute contempt of Court, unless there is a specific
14 2012(284) ELT 335 (Del.).
15 CIC Decision No.CIC /WB/A/2008/00838/1777.
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Bharati Law Review, Oct-Dec, 2016 235
In order to enable the Parliament or the State Legislature or their
individual members to perform their functions effectively and
without any impediments or interference from any quarter, certain
privileges are conferred upon them under Article 105 of the
Constitution which relates to the powers, privileges and
immunities of Parliament and its members, and under Article 194
of the Constitution which relates to the powers, privileges and
immunities of State Legislatures and their members.16As defined
by Sir Thomas Erskine May, ‘Parliamentary privileges’ are the sum
of the peculiar rights enjoyed by each house collectively is a
constituent part of the High Court of Parliament, and by members
of each house of parliament individually, without which they
cannot discharge their functions, and which exceed those
possessed by other bodies or individuals.’17Under Section 8(1)(c) of
the RTI Act, the public authority is not under obligation to furnish
information, the disclosure of which would cause a breach of
privilege of Parliament or the State Legislature.
Some of the privileges specified by the Constitution are, freedom
of speech in Parliament, immunity to a member from any
proceedings in any court in respect of anything said or any vote
given by him in Parliament or any committee thereof, immunity to
a person from proceedings in any court in respect of the
publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings. Courts are
prohibited from inquiring into the validity of any proceedings in
Parliament on the ground of an alleged irregularity of procedure.
Further, no officer or Member of Parliament empowered to
regulate procedure or conduct of business or to maintain order in
Parliament can be subject to the jurisdiction a court in respect of
exercise by him of those powers and no person can be liable to
any civil or criminal proceedings in any court for publication in a
newspaper of a substantially true report of proceedings of either
House of Parliament unless the publication is proved to have been
made with malice. This immunity is also available for reports or
matters broadcast by means of wireless telegraphy. This
immunity, however, is not available to publication of proceedings
of a secret sitting of the House. Thus, privilege, though part of the
law of the land, is to certain extent an exemption from the general
law.18
16 Art.105 and Art. 109 of the Constitution of India.
17 May Erskine Parliamentary Practice, Butterworths, London, 21st Edn., 1989, p.
69.
18 Rajya Sabha at Work, Chapter-8.
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